EXHIBIT 10.34
Amendment to Purchase and Sale Agreement between
PDH Associates LLC and CNL Hospitality Corp.
relating to the Courtyard Palm Desert and
the Residence Inn Palm Desert
PALM DESERT COURTYARD AND RESIDENCE INN
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Amendment") is made and
entered into as of this 17th day of March, 2000, by and between PDH Associates
LLC, a Utah limited liability company ("Seller"), and CNL Hospitality Corp., a
Florida corporation or assigns ("Buyer").
RECITALS
WHEREAS, Seller and Buyer have entered into that certain Purchase and
Sale Agreement dated as of the 19th day of January, 2000 with an Effective Date
of January 25, 2000 (the "Agreement"); and
WHEREAS, by letter agreement dated March 9, 2000 the Buyer and Seller
amended the Agreement to extend the Due Diligence Period until March 17, 2000
(the letter agreement shall together with the Agreement be called the
"Agreement").
WHEREAS, Buyer and Seller desire to amend said Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Buyer and Seller acknowledge and agree that the foregoing recitals
are true and correct and confirm and agree that the Agreement remains in full
force and effect except as modified herein. All capitalized terms used but not
defined herein shall have the meaning as set forth in the Agreement.
2. This Amendment shall be effective as of the date upon which the last
of Seller and Buyer executes this Amendment (the "Amendment Date").
3. The first paragraph of Article 2 of the Agreement shall be amended
and restated as follows:
"The purchase price ("Purchase Price") which Seller
agrees to accept and Buyer agrees to pay for the Property is
Thirty Million Two Hundred Fifty Thousand and No/100 Dollars
($30,250,000.00)."
4. Additional Xxxxxxx Money Deposit. Within two (2) business days after
the Amendment Date Buyer shall deposit with Escrow Holder an additional xxxxxxx
money deposit in the amount of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00). Said additional xxxxxxx money deposit, together with all interest
accrued thereon, shall constitute part of the Deposit, as defined in Section 2.1
of the Agreement, and shall be held and distributed by Escrow Holder as provided
therein. Upon its execution of this Amendment, Escrow Holder agrees to provide
Buyer and Seller written notice of the same, which notice shall include a copy
of the signature pages hereof. Said notice is to be given by facsimile pursuant
to Section 14 of the Agreement.
5. Section 3.1 of the Agreement is hereby amended and restated as
follows:
"Section 3.1 Due Diligence Period; Termination. Buyer
acknowledges that Buyer has completed its market analysis of
the underlying economic value of the Property to support the
Purchase Price, and the same are acceptable to Buyer. Buyer
shall have from the Effective Date until May 2, 2000 (the "Due
Diligence Period") to inspect the Property, attempt to secure
an operating tenant, and to investigate any other aspects of
the proposed transaction that Buyer may elect. Buyer shall at
any and all times during the Due Diligence Period have the
right in its sole and absolute discretion to terminate this
Agreement and receive the return of the Deposit. If Buyer
decides, in its sole discretion, not to terminate the
Agreement pursuant to this Article 3, it shall so advise
Seller in writing prior to the expiration of the Due Diligence
Period. If Buyer fails to deliver such written notice, then
this Agreement shall automatically terminate, the Deposit
shall be returned to Buyer, the parties shall share equally
the customary escrow cancellation fees, if any, of Escrow
Holder, and neither party shall have any further obligations
under this Agreement to the other except pursuant to any
provision of this Agreement which expressly survives the
termination of this Agreement. If Buyer terminates or is
deemed to have terminated this Agreement prior to Closing
under any provision of this Agreement, Buyer shall deliver
promptly to Seller copies of all reports requested by Seller
that have been prepared for Buyer by any third parties
relating to the condition of the Property (provided that
Seller shall reimburse Buyer for one-half of the cost of such
requested reports), and Buyer shall return to Seller all of
the documents and information provided to Buyer pursuant to
Section 3.2. Buyer agrees that all of the documents and
information provided by Seller to Buyer in connection with
Buyer's due diligence inspection of the Property shall be used
by Buyer solely to determine its interest in the purchase of
the Property (including Buyer's attempt to secure potential
investors, potential financing and an operating tenant
("Buyer's Tenant") for the Hotels), and for no other purpose
to Seller's detriment. Buyer's obligations set forth in the
two foregoing sentences shall survive the termination of this
Agreement."
6. Section 3.4 of the Agreement is hereby amended and restated as
follows:
"Section 3.4 Intentionally omitted."
7. Section 4.2 is hereby amended and restated as follows:
"As promptly as reasonably possible, but in any event
within twenty (20) days after the Amendment Date, Seller
shall, at Seller's expense, obtain and deliver to Buyer a
current "as-built" survey for the Property (the "Updated
Survey") with the seal and signature thereon of an engineer or
surveyor registered in the State of California, which survey
shall (a) include and show the metes and bounds description of
all parcels comprising the Premises, (b) indicate that all
parcels comprising the Premises are contiguous, (c) be
certified to Seller, Buyer and the Title Company, (d) show the
location and dimension together with recording information of
all easements which encumber or are appurtenant to the
Premises, and whether the same are encroached upon by the
Improvements or shall interfere with the use of, or access to,
the Premises and the Improvements thereon, or cross the
property of others in the absence of properly recorded
easements therefor, (e) show the location and dimension of the
Improvements (including the location and number of any parking
spaces), (f) indicate whether there exists any violation of
height and building restrictions and setback and parking
requirements, (g) be accompanied by a certificate from the
Surveyor substantially in the form attached as Exhibit "C"
hereto (or as otherwise reasonably acceptable to Buyer), (h)
comply with ALTA standards, and (i) be dated not earlier than
the Effective Date. As promptly as reasonably possible, but in
any event within twenty (20) days after the Effective Date,
Buyer shall obtain at Seller's expense a commitment (the
"Title Commitment") for an ALTA Owner's Title Insurance Policy
showing title to the real property in Seller, dated not
earlier than the Effective Date and proposing to insure Buyer
in the amount of the Purchase Price, issued by the Title
Company or another title insurance company reasonably
acceptable to Buyer. If the Title Commitment or Updated Survey
discloses matters which are not permitted pursuant to Section
4.1 and/or to which Buyer objects, Buyer shall give written
notice specifying such objections to Seller within thirty (30)
days after its receipt of the last of the Title Commitment,
copies of all of the underlying title documents, and the
Updated Survey. Buyer's failure to give a notice of objection
within such thirty (30) day period shall be conclusively
deemed to constitute approval of the Title Commitment and
Updated Survey by Buyer. Seller shall have thirty (30) days
after the date of receipt of Buyer's written notice to remove
any such matters from title or the Updated Survey, as the case
may be, or to have the Title Company waive such matters or
commit to insure for the full amount of the policy against
loss or damage that may be occasioned by such matters;
provided, however, that except with respect to monetary liens
or encumbrances, Seller shall be under no obligation to do so.
If Seller (in its sole discretion) elects not to have such
matters removed, waived or committed to be insured over within
such thirty (30) day period, Seller shall so notify Buyer, and
Buyer may (i) terminate this Agreement upon written notice
given to Seller within five (5) business days after Buyer's
receipt of such notice from Seller, or (ii) elect, by written
notice given to Seller within five (5) business days after
Buyer's receipt of such notice from Seller, to take title to
the Property as it then is without any set-off or deduction of
any kind against the Purchase Price. If Seller does not
receive written notice of Buyer's election to terminate this
Agreement within five (5) days after Buyer's receipt of such
notice from Seller, then Buyer shall be conclusively presumed
to have elected to take title as it then is, as provided
above. If this Agreement is terminated by Buyer as provided
above in this Section 4.2, then Escrow Holder shall return the
Deposit to Buyer, Seller shall pay any cancellation fees of
Escrow Holder, and neither party shall have any further
obligations hereunder to the other except pursuant to any
provision hereof which expressly survives the termination of
this Agreement. In the event that Seller elects, in its sole
discretion, to cure any title or survey matter to which Buyer
has objected, then the parties agree to postpone the
expiration of the Due Diligence Period and Closing Date for a
reasonable period, not to exceed thirty (30) days, if required
to enable Seller to complete the cure of such matter."
8. The second sentence of Section 4.3(a) of the Agreement is hereby
amended and restated as follows:
"Within five (5) business days of its receipt of the
Survey, Buyer shall notify Seller whether it approves or
disapproves the respective forms of the Mutual Easement
Agreement and the Restaurant CC&Rs which have been delivered
to Buyer as of the date of this Amendment."
9. Section 5.7 of the Agreement is hereby amended and restated as
follows:
"Section 5.7 Operating Statements. Seller shall
continue to prepare monthly operating statements for the
Hotels through the Closing Date, and shall promptly deliver to
Buyer true, correct and complete copies of all such operating
statements prepared after the Effective Date. Within five (5)
days of the Amendment Date, Seller shall prepare and deliver
to Buyer unaudited Balance Sheets and Profit and Loss
Statements with respect to Seller and each of the Hotels, for
the year ending December 31, 1999."
10. Section 5.12 of the Agreement is hereby amended and restated as
follows:
"Section 5.12 Liquor License. Buyer shall cause
Buyer's Tenant to submit an application (the "Application") to
the California Department of Alcoholic Beverage Control for
the transfer of Seller's liquor license for the Premises to
Buyer's Tenant on or before April 15, 2000; provided, however,
that Buyer's duties under this Section 5.12 are contingent on
the satisfaction by Seller of all conditions precedent to the
submission of the Application which are within the control of
Seller. Buyer agrees to pay to Seller liquidated damages of
Two Thousand and No/100 Dollars ($2,000.00) per day for each
day that the Closing Date is extended pursuant to Section 6.3
solely as a result of Tenant's failure to submit the
Application by April 15, 2000. In no event shall the total
liquidated damages paid pursuant to this Section 5.12 exceed
the product of Two Thousand and No/100 Dollars ($2,000.00)
multiplied by the number of days after April 15, 2000 that
Buyer's Tenant submits the Application. The parties agree that
the amount of liquidated damages established by this Section
5.12 is a reasonable estimate under the circumstances existing
on the Amendment Date of what Seller's damages would be in the
event of Buyer's failure to perform in a timely fashion
hereunder. Seller's sole and exclusive remedy for failure of
Buyer's Tenant to submit the Application by April 15, 2000
shall be the right to liquidated damages as provided in this
Section 5.12."
11. Section 6.1(p) of the Agreement is amended and restated as follows:
"6.1(p) Within thirty (30) days following the
Amendment Date (or any longer period as may be mutually agreed
by the parties), Buyer and Seller shall have agreed upon the
form of all closing documents (as provided in Section 9.3)."
12. Section 6.2(f) of the Agreement is hereby amended and restated as
follows:
"6.2(f) Within thirty (30) days following the
Amendment Date (or any longer period as may be mutually agreed
by the parties), Buyer and Seller shall have agreed upon the
form of all closing documents (as provided in Section 9.3)."
13. The first three sentences of Section 6.3 of the Agreement are
hereby deleted and the following is inserted in place thereof:
"In the event that any of the conditions set forth in
Section 6.1 shall not have occurred prior to (or shall not
occur simultaneously with) the scheduled Closing Date, then
upon Buyer's request and subject to Seller's written approval,
which approval shall not be unreasonably withheld, the Closing
shall be delayed for a reasonable period, but in no event
exceeding thirty (30) days beyond the scheduled Closing Date,
to allow such condition to occur. In the event that any of the
conditions set forth in Section 6.2 shall not have occurred
prior to (or shall not occur simultaneously with) the
scheduled Closing Date, then upon Seller's request and subject
to Buyer's written approval, which approval shall not be
unreasonably withheld, the Closing shall be delayed for a
reasonable period, in no event exceeding thirty (30) days
beyond the scheduled Closing Date, to allow such condition to
occur."
14. The second sentence of Article 7 of the Agreement is hereby amended
and restated as follows:
"The Closing shall occur at 9:00 a.m. Mountain Time
on June 1, 2000 (the "Closing Date"), subject to extension as
specifically provided for hereunder, at the offices of the
Title Company in Palm Desert, California or at such earlier or
later date or other place and/or time as may be mutually
agreed upon in writing by both Seller and Buyer, unless the
Closing Date is postponed as expressly provided in this
Agreement."
15. Section 8.4 of the Agreement is hereby amended and restated as
follows:
"Section 8.4 Tax Allocations. Prior to the expiration
of the Due Diligence Period (or such longer period as the
parties may mutually agree), Buyer and Seller will agree upon
the allocation of the Purchase Price for tax purposes."
16. Section 9.3 of the Agreement is hereby amended and restated as
follows:
"Section 9.3 Closing Documents. Within thirty (30)
days following the Amendment Date Buyer and Seller shall agree
upon the form of Closing Documents described in Sections 6.1
and 6.2."
17. This Amendment may be executed in any number of counterparts, each
of which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one and the same original.
18. Other than as specifically modified herein, the terms and
provisions of the Agreement shall remain unchanged.
BUYER: SELLER:
CNL HOSPITALITY CORP., PDH ASSOCIATES LLC,
a Florida corporation a Utah limited liability company
By: Cirque Property L.C.,
its Managing Member
By: /s/ C. Xxxxx Xxxxxxxxxx
-------------------------------
C. Xxxxx Xxxxxxxxxx By: /s/ J. Xxxxxxx Xxxx
Senior Vice President of -----------------------------
Finance and Administration J. Xxxxxxx Xxxx
Managing Member
Date: March 21, 2000 Date: March 17, 2000
-------------------------------- -----------------------------
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx
--------------------------
Print Name: Xxxxxx Xxxxxx
Title: Houston National Accts.
Date: March 21, 2000
